Scalia has been called out by some for having a too weak view of the Establishment Clause, but many were not fans of his stance on free exercise either after Oregon v. Smith. There the Court held that a neutral general law (e.g., a ban on peyote use) is constitutional even if it burdened religious exercise. The opinion summarized the case law (cites abridged):
As compared to benefits already determined by weighing individual needs, an exemption would allow one "to become a law unto himself." A person's religious beliefs cannot "contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." U.S. v. Lee, involving Social Security taxes, was cited with approval to fit into this principle, including a slippery slope where exemptions would have no stopping point.
Congress didn't like the ruling and passed RFRA, which was partially held unconstitutional as applied to state action because it was not necessary to enforce the Fourteenth Amendment. Stevens by himself also flagged an Establishment Clause problem since it was such a grand special benefit to religion alone, which would logically mean it is a problem even if applied to federal action. But, I don't know of him bringing that up again, perhaps since the questions presented in later cases never came up. A more limited case involving prisons is the only case where it arguably might.
RFRA can be said to be a legislative accommodation as compared to a judicially required rule. But, at a certain breadth, the problems still arise. They suggest the limits of RFRA, religious liberty not the only thing out there. And, RFRA's broad exemptions also put a lot of power in the hands of the courts, which have to determine if burdens are serious enough or interests compelling enough to override that and if there are alternative means. Such complicated judicial duties, even when neutral rules are in place, determining the "business of evaluating the relative merits of differing religious claims" was seen as "not within the judicial ken." Some broad acceptance of religious beliefs, however, has its own problems, especially with the open-ended RFRA exemptions.
Scalia would be an appropriate person to weigh such concerns, a conservative who is respected for honoring religious liberty in various other contexts. I'm wary of the limited reach of the Smith rule, especially when applied to individual religious practice as compared to more public regulations involving third parties. But, the open-ended rule where neutral laws that clash with religious belief must meet heightened scrutiny very well will cause problems given its breadth, especially if evenly applied to lots of competing views. I respect Scalia's approach, including it going against a stereotypical view of his beliefs.
An even-handed approach would make Hobby Lobby a hard case in the very least, but Scalia silently went along. It is not surprising that he would not be as concerned about the sexual equality and privacy claims that arise, probably voting with the dissent in Griswold v. Connecticut. All the same, the discretion given to judges might give him pause, even if he thought the majority was right that the text of RFRA commanded the result. A separate opinion would have been useful.
OTOH, maybe the text did not (or should not, in part because of constitutional concerns) and his own concerns help us see why. After all, RFRA "restored" the situation to the earlier cases that he cited in that opinion. The new legislation made general laws alone not adequate, accommodations required there too, but the other concerns were part of the old order too.
(The application of RFRA to for-profit corporations also is dubious, but is not directly raised by Scalia's two opinions, so I'll let it lie.)
The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." Sherbert v. Verner. The government may not compel affirmation of religious belief, see Torcaso v. Watkins, punish the expression of religious doctrines it believes to be false, United States v. Ballard, impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty; Fowler v. Rhode Island; cf. Larson v. Valente, or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church; Kedroff v. St. Nicholas Cathedral; Serbian Eastern Orthodox Diocese v. Milivojevich.A later case touching upon the last matter gave constitutional weight to a "ministerial" exemption, a sort of religious association right of autonomy. The first case was in effect limited to its facts -- "system of individual exemptions" (there unemployment benefits) would require religious belief to be included. This case involved just that, and might have been limited, but since illegal conduct was at stake, a wider approach was taken.
As compared to benefits already determined by weighing individual needs, an exemption would allow one "to become a law unto himself." A person's religious beliefs cannot "contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities." U.S. v. Lee, involving Social Security taxes, was cited with approval to fit into this principle, including a slippery slope where exemptions would have no stopping point.
Congress didn't like the ruling and passed RFRA, which was partially held unconstitutional as applied to state action because it was not necessary to enforce the Fourteenth Amendment. Stevens by himself also flagged an Establishment Clause problem since it was such a grand special benefit to religion alone, which would logically mean it is a problem even if applied to federal action. But, I don't know of him bringing that up again, perhaps since the questions presented in later cases never came up. A more limited case involving prisons is the only case where it arguably might.
Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented by Smith is, quite simply, whether the people, through their elected representatives, or rather this Court, shall control the outcome of those concrete cases.Scalia defended his opinion from attack in a separate opinion. Hobby Lobby was such a "concrete case." Like U.S. v. Lee, it was an employment regulation involving social welfare regulation and taxation. It did not merely involve an individual exemption since it directly affected third parties (employees), religious institutions, a specific religion being targeted or a burden on the freedom of belief. Line drawing in practice will be very difficult, if done neutrally (and per basic rules) not done in a way to burden third parties (voluntary exemptions are acceptable per Smith). These problems have been raised by Hobby Lobby critics.
RFRA can be said to be a legislative accommodation as compared to a judicially required rule. But, at a certain breadth, the problems still arise. They suggest the limits of RFRA, religious liberty not the only thing out there. And, RFRA's broad exemptions also put a lot of power in the hands of the courts, which have to determine if burdens are serious enough or interests compelling enough to override that and if there are alternative means. Such complicated judicial duties, even when neutral rules are in place, determining the "business of evaluating the relative merits of differing religious claims" was seen as "not within the judicial ken." Some broad acceptance of religious beliefs, however, has its own problems, especially with the open-ended RFRA exemptions.
Scalia would be an appropriate person to weigh such concerns, a conservative who is respected for honoring religious liberty in various other contexts. I'm wary of the limited reach of the Smith rule, especially when applied to individual religious practice as compared to more public regulations involving third parties. But, the open-ended rule where neutral laws that clash with religious belief must meet heightened scrutiny very well will cause problems given its breadth, especially if evenly applied to lots of competing views. I respect Scalia's approach, including it going against a stereotypical view of his beliefs.
An even-handed approach would make Hobby Lobby a hard case in the very least, but Scalia silently went along. It is not surprising that he would not be as concerned about the sexual equality and privacy claims that arise, probably voting with the dissent in Griswold v. Connecticut. All the same, the discretion given to judges might give him pause, even if he thought the majority was right that the text of RFRA commanded the result. A separate opinion would have been useful.
OTOH, maybe the text did not (or should not, in part because of constitutional concerns) and his own concerns help us see why. After all, RFRA "restored" the situation to the earlier cases that he cited in that opinion. The new legislation made general laws alone not adequate, accommodations required there too, but the other concerns were part of the old order too.
(The application of RFRA to for-profit corporations also is dubious, but is not directly raised by Scalia's two opinions, so I'll let it lie.)